001 Ken Okuda
The meeting is now in session.
The agenda is a bill for a partial amendment to the Civil Code, etc., submitted by the Cabinet.
At this time, I would like to ask for your advice.
For the purpose of examination of this bill, I would like to request the attendance of Mr. Masaru Hara, Director General, Civil Affairs Bureau, Ministry of Justice, Mr. Yukimasa Shinoda, Deputy Director-General, Minister’s Secretariat, Ministry of Health, Labour and Welfare, and Ms. Junko Ishii, Deputy Director-General, Minister’s Secretariat, Ministry of Health, Labour and Welfare, as government witnesses, and to hear their explanation. One person called for “no objection.
002 Ken Okuda
I see no objection. Therefore, it has been decided as such.
003 Ken Okuda
Next, I would like to ask for your advice.
There is a request from Mr. Toyosawa, Director of the Family Affairs Bureau of the Supreme Court Administrative General Bureau, for an explanation of his attendance today. There is no objection.
004 Ken Okuda
I see no objection. Therefore, it was so decided.
005 Ken Okuda
There are some questions, so I will allow them to be raised in turn. Toshiko Abe.
006 Toshiko Abe.
Good afternoon. I am Toshiko Abe of the Liberal Democratic Party.
In particular, the main point is the suspension of parental authority, which is really needed in the field. With regard to the review of the guardianship system for minors, the allowance of corporations or multiple guardians for minors is also a very necessary part of the Civil Code. In addition, I am very much in favor of the provision regarding the substitution of parental authority at the Child Guidance Center, which I will abbreviate to the Child Minister, and the right of visitation for families after divorce.
In particular, I think the fact that the government has taken the step of reviewing the custody system under the Civil Code, which has been regarded as a sacred area, is highly commendable. There are many areas where the current law is inadequate, especially in the area of custody, such as the extent to which the director of the institution has the authority to take care of the child. This is in Article 47(2) of the Child Welfare Law. In addition, the authority of the Child Guidance Center was unclear with regard to children who were temporarily taken into custody, and from this perspective, I believe that the suspension of parental rights, which is limited to two years, is very serious.
In the past 35 years, only 31 cases of deprivation of parental rights have been reported. Minister, why do you think the number of such cases has been so small?
#007 May Eda The state of parental rights has become a serious social issue, and there have been many cases one after another where the person with parental rights did not exercise their parental rights properly. However, when the parental rights are lost, it is completely cut off, and if there is only a procedure that has the effect of such a large loss, it is difficult to use a cattle prod to crack open a chicken head. I think that is why it has not been used in the past.
Therefore, I would like to express my gratitude to the committee members for their deep understanding in order to create a system that is a little more or a lot easier to use.
008 Toshiko Abe
As the Minister said, the loss of parental rights is too serious, but in response to the voices of those in the field who feel that it is necessary to separate the parents from the child, and from the perspective of supporting the rehabilitation of parents and children, I am in favor of this suspension.
In particular, as a nurse, I have encountered various situations of medical neglect in the medical field. As the Minister is aware, there have been cases in the media where children have refused to receive medical treatment for otitis media, refused flu shots for minor cases, or refused surgery or blood transfusions for religious reasons. There were also cases where parental rights should have been temporarily suspended.
However, in cases where I judged that the suspension of parental rights was necessary to protect the life of the child in the case of medical neglect, when this suspension was carried out, who would bear the cost of the surgery and how?
009 Yu Hara
Article 820 of the Civil Code states, “The person who exercises parental authority has the right and the obligation to take care of and educate the child. I think it is generally understood that this provision does not stipulate the burden of the cost of custody and education, and that the burden of the cost is a matter of the performance of the parent’s duty of support to the child.
010 Toshiko Abe
In addition, there have been several cases of unreasonable claims by the person with parental rights, for example, and there have also been cases where, in relation to the suspension of parental rights, the children have been prevented from doing various things that they want to do or should do without the suspension of parental rights.
In the media, there have been cases where children who were temporarily separated from their parents for part-time jobs could not get a cell phone because their parents refused to sign a contract. There have also been cases where the parents terminated the contract even though the student, still a minor, had signed a contract for an apartment while working and wanting to live on his own.
Minister, what kind of impact do you think this suspension of parental rights will have on the individual’s ability to decide what he or she wants to do?
011 May Eda
I think that if parental rights are suspended, a person will be properly designated to replace the person with parental rights, or a guardian of the minor, or someone like this will be able to give consent and make contracts in place of the person with parental rights.
012 Toshiko Abe
There are various kinds of abuse, such as physical abuse, sexual abuse, economic abuse, and even psychological abuse that interferes with the children’s thoughts.
However, I believe that there are some aspects that are very painful for the parents. In particular, there are some unjustified claims by the custodial parent.
013 May Eda
I used to swim all the time when I was a child, and I often got otitis media. Otitis media can be cured by taking antibiotics, such as Keflar, as soon as it starts, but if you miss it, it is very serious if it becomes chronic.
But if the child misses that point, it would be very serious if the disease becomes chronic. I think there are so many ways to do this. There are so many ways to do this. There are so many ways to make unjustified claims to exercise parental rights and create results that are contrary to the interests of the child. I’m only going to mention medical neglect, but I think there are many examples.
014 Toshiko Abe
There is a lot of controversy about unjustified intervention, and one of the things that I don’t understand is why it is so important for both sides.
However, if the child has a mild intellectual disability or a developmental disability, the regular class may cause panic. If the child guidance center, for example, makes a decision that the child should be placed in a special needs class, but the parents say otherwise, it is very difficult to determine which is the right decision for the welfare of the child. This is not an obstacle to the passage of this bill, but I believe that this debate must be continued.
Minister, I would like to ask you about this.
015 May Eda
It is really difficult to decide whether special needs classes or integrated education, or general classes, are better. However, there are cases where this does not happen in reality, and there are also cases where the disability is so severe that it is too much of a burden for the teachers and the children around them.
However, the most basic thing is that the parents are the ones who have custody of the child, so they should think hard about what is best for the child and make a decision. And then make a decision. If the parent’s decision is not in the best interest of the child, but rather in the best interest of his or her own reputation, or if the decision is not in the best interest of the child for other reasons, it may be necessary to intervene.
016 Toshiko Abe
As you said, it is very difficult to determine what the priority is for the child, but I think it is something that we need to think about continuously.
Another aspect of this bill that is very much appreciated is the revision of the legal person or multiple legal persons as guardians of minors. In particular, it has been difficult to secure guardians for minors because the role is too heavy and the burden and responsibility is too heavy for those who take over the responsibility. I would like to know what kind of comments were made to the Minister regarding the revision of the guardianship of minors?
017 Mayuki Eda
I’m sorry, but I haven’t received any feedback from the field myself since I just took office recently. For example, there are various facilities run by various social welfare corporations, and they say, “Eighteen or nineteen years old, they are still minors, but we can’t keep them in institutions when they turn eighteen, but we don’t want to just drop them out into society, but we have seen them in our care, we know them well, and they are depending on us. I understand that there are many voices that have been raised, saying that they would like to have the corporation continue to assist in the care and education of the child.
023 Junko Ishii
I would like to answer your question.
During the two years when parental rights are suspended, it is important to make sure that the parents and children are properly reunified, and we are working very hard to develop programs for reunification of parents and children.
At present, we are conducting research on the implementation status of various programs and their effects, and based on the results of the research and verification on parental guidance, we will make further efforts to ensure that Child Guidance Centers are able to appropriately provide parental guidance and support.
024 Toshiko Abe
I would very much like to ask for that part.
As a final question, I would like to ask about visitation rights after divorce.
In 2008, the number of divorces was 251,136, an increase of 100,000 from 1989, and one couple divorces every two minutes and six seconds. The number of families with minor children at the time of divorce is 60%, or 143,834.
According to the Annual Report on Judicial Statistics, the number of petitions for mediation on visitation exchange quadrupled from 1,700 in 1998 to 6,261 in 2008, but only 49% of them were approved.
This visitation right, in particular, is a way for children to confirm that their divorced parents who do not live together are still thinking about them. This is said to be necessary in order to promote separation from parents and to establish identity.
What do you think about the necessity of the visitation rights, especially with this wording?
025 May Eda
There were not enough provisions on what kind of arrangements should be made in the case of divorce. However, in reality, whether it is visitation or sharing of expenses, it is always desirable for the divorcing parents to make a proper agreement with each other, and the family courts have made various efforts to have this decided as much as possible. However, it was not easy to reach such a goal. In addition, the fact is that such efforts were sometimes used as a bargaining chip between the father and mother.
Therefore, this time, we are trying to enshrine in the law that there should be a firm agreement on visitation and sharing of expenses, and that the agreement should be made in the best interest of the child.
Even though it is a divorce, it does not change the fact that you are a father and a mother, so for the sake of the child, it is important that my father is there and my mother is there watching over me. But basically, I believe that visitation is very important for the welfare of the child, and that depriving the child of this is something that should not be done unless there is a serious problem.
When making such an agreement at the family court, there are investigators at the family court, and the investigators do various things considering the reunification of the parent and the child, so I have high expectations for the work of the investigators at the family court. I would like to see the work of the family court investigators, and I also think that the family court investigators should think about the possibility that the divorce will be finalized, or that there will be a case of mediation, and in such a case, the various records will be made.
026 Toshiko Abe
I think it is really important for the child, but when I think about the fact that divorce is not so easy for many people, I think that the contact between the ex-spouse and the child can have a great impact on the mother’s emotional state. So, I think it is necessary to follow up on this part. In addition, I think that the medium- to long-term effects of visitation by a parent with whom the child does not live should be closely followed up, educated and counseled, and this should be done in a way that goes beyond the law. I’d like to make one last comment.
Lastly, I would like to say that during the Great Hanshin Earthquake, there were many reports of child abuse in evacuation centers. In the Great East Japan Earthquake, I would like to ask you to continue to focus on child abuse, especially as the life in evacuation centers becomes longer, so that the number of victims will not increase.
My time has come, so I will conclude my question. Thank you very much for your time.
027 Ken Okuda
Next, Mr. Hase Hiroshi.
028 Hiroshi Hase
I am Hase of the Liberal Democratic Party. I look forward to working with you again today.
The case of child abuse at the time of the Great Hanshin Earthquake, which Mr. Abe mentioned at the end of his speech, is about this in detail. There was a great deal of sexual abuse in evacuation centers. I would like to reiterate that I would like to ask you to pay close attention to child custody in evacuation centers in the wake of the Great East Japan Earthquake.
Now, let me get to the questions.
First of all, when was the current custody rule established?
029 Masaru Hara
In the 31st year of Meiji, a provision on parental rights was established in Part IV of the so-called Meiji Civil Code. After that, after the war, a new constitution was enacted, and in 1947, from the perspective of the dignity of the individual and the equality of men and women, which are the principles of the new constitution, amendments were made, and the provisions of the current Civil Code were established.
030 Yasuhiro Hase
Please show us the current content of parental rights and how it differs from the content of parental rights before that.
031 Yu Hara
If you look at the current Civil Code, Part IV, Kinship Chapter, in Chapter IV, there is a provision on parental rights, and Section 1 is the general provisions, Section 2 is the effect of parental rights, and Section 3 is the loss of parental rights.
Section 1, the General Provisions, provides for the subject matter of the exercise of parental rights, which is who exercises parental rights. Section 2, the Effect of Parental Authority, contains provisions on the specific content of parental authority, such as the rights and obligations of custody and education, and property management. Section 3, Loss of Parental Rights, contains provisions on the loss of parental rights and the loss of management rights.
Comparing with the Meiji Civil Code, in the Meiji Civil Code, as a general rule, the father who shares the same house with the child has the right of custody, and the case where the mother has the right of custody was restricted. I think this is due to the influence of the family system. After the war, as I mentioned earlier, a new constitution was enacted and the law was amended from the perspective of individual dignity and gender equality, so in the current Civil Code, parental rights are exercised jointly by the parents during marriage. In the current Civil Code, parental rights are exercised jointly by parents during marriage.
032 Hiroshi Hase
Given the flow of parental rights provisions since the Meiji era, I think it is fair to say that this amendment is a reconfiguration of the parental rights provisions recognized after the war, which did not exist in the Meiji era, based on the interests of the child. In this sense, I feel that the amendment has historical significance, but what do you think, Minister?
In addition, shouldn’t the wording have been revised more clearly to say “in the best interest of the child” instead of “for the benefit of the child”?
033 May Eda.
As the government witness just explained, the Meiji Constitution basically used the family as the unit of the family, and there was a head of the household, to whom various people, including oyi and meis, were attached for a long time. A child was a member of such a family. Therefore, in the Meiji Civil Code, for example, a person with parental authority had to give permission for a minor child to apply for military service, or the mother had to obtain the consent of the family council for the exercise of her parental authority.
In the post-war reforms, the family system was abolished and the family register was divided into the units of husband and wife and children, and the current system was established.
However, the United Nations has also established the principle of “Children First.” Since children are the dreams and hopes of the future, we want to make it clear that child rearing and upbringing are of utmost importance and that parental rights are to be exercised for such purposes.
The best interest of the child is already a matter of course, and even if you don’t write “best interest,” “the best interest of the child” is the best interest. On the other hand, if I were to write, “the best is this,” “the next best is this,” “the third best is this,” and so on, it would only make things more complicated, so I would like you to understand that “the best interest of the child” means the best interest of the child.
034 Hiroshi Hase
I understand. I am glad to hear that the Minister has a good understanding of the fact that the social background of parental rights since the Meiji era has led to the present day.
As a matter of fact, even though I strongly and forcefully requested that the Child Abuse Prevention Law should be partially or temporarily suspended in the Supplementary Provisions when it was amended in 2004, and when it was amended in 2008, it was the Ministry of Justice that resisted the request. Why did this happen? I don’t want to say now why this has happened, but I would like to have a discussion toward the future while asking today’s questions.
Let’s go on to the next question. In the article of this amendment, visitation and exchange are defined separately, what is the difference between the two?
035 Yu Hara
Visitation means that the father or mother actually meets the child. Exchange is a broader concept that also includes communication through telephone conversations and letters, and we use the term “exchange” as a broader term that includes visitation.
036 Hiroshi Hase
The term “exchange” also includes e-mail, doesn’t it?
037 Masaru Hara
I think it is included.
038 Hase Hiroshi
I think this is the difference of the times.
In the 1996 outline of the draft law, the term “visitation and exchange” was used. This amendment changes it to “visitation and other exchanges”. What is the difference between the two? What is the purpose of including the word “other”? Is it correct to think that visitation is more basic than other exchanges for contact between parents and children?
039 May Eda
As I have just answered, there are overlaps and differences between visitation and exchange, but it is true that in the 1996 outline of the draft law, the term “visitation and exchange” was used, but this would lead to the understanding that visitation and exchange are two different things, so visitation is basic. As a parent and a child, e-mail is fine, but the most important thing is to have a face-to-face relationship. Therefore, although visitation is the basic concept, there is a wide range of interaction, including e-mail, telephone calls and letters. So, please understand that I have accurately indicated the concept here.
040 Hase Hiroshi
In the 1994 draft of the outline, the term “interview and negotiation” is used. What is the difference between “visitation and other exchanges” and “visitation”?
041 May Eda
The term “interview negotiation” has been used before, and it was called something like “the right to interview,” but I don’t know what it is. When it comes to going to interviews, there are interviews with companies, and there are interviews with suspects by defense attorneys.
042 Hiroshi Hase
I understand that the wording has been made easier to understand.
The provisions on visitation in the proposed amendment follow what was stated in the explanation of the draft outline in 1994, which clearly states that “In general, it is desirable to maintain contact with the parents in order to nurture and ensure the sound growth of the child. Is it correct that this amendment also follows this point?
043 May Eda
As the Commissioner pointed out, the draft outline states, “In general, it is desirable to maintain contact with the parents from the standpoint of the child’s upbringing and sound growth. This is very true.
Generally speaking, it may sound like there are a lot of exceptions, but the fewer exceptions there are, the better, so except in very special cases, I believe that contact with parents is still important, regardless of the various difficulties that may arise, and we have come up with this legislation based on this idea.
044 Hiroshi Hase
In light of this, I would like to ask you about the purpose of the legislation that specifically mentions visitation exchange.
If it is just to confirm visitation exchange, which is well-established in court practice, as some have been saying, this is definitely not acceptable. Unless the purpose of the legislation is to actively promote visitation exchange, which is inadequate compared to other countries, the Ministry of Justice’s idea that continuous contact with parents is desirable for the growth of the child will end up being just a picture.
045 May Eda
Originally, it was interpreted that visitation exchange was included in the “matters necessary for the custody of the child” in Article 766(1) of the Civil Code, and the practice of the family courts is also based on that understanding. However, visitation is not clearly defined in the article. Therefore, when the family court makes this adjustment, it is not possible to say to the parties concerned that it is written in the article, so there were always cases where a clear provision was not made at the time of divorce.
Therefore, by clearly stating in the article specific examples of matters necessary for custody, we are encouraging the parties to make such arrangements in the event of a negotiated divorce, and this is the intention of the Diet. This is the will of the Diet, and we are trying to make the family courts understand this, and through the operation of the family courts, we are trying to create a common sense in society that an agreement is necessary even in cases of negotiated divorce.
The fact that this is not written in the document means that the question has not been asked to that extent yet. (Commissioner Hase, “Please go ahead.") By having this written down, it means that things such as visitation exchange and cost sharing will not become a bargaining chip for fathers and mothers who want to separate, or a source of various disputes. This is not to be used as a bargaining chip by the father or mother, but to be considered in the best interest of the child.
046 Hase Hiroshi
Minister, you can go on talking. The reason is that I want the Minister’s comments to be clearly recorded in the minutes, and I want the Supreme Court to read those minutes properly. In the past, I, as well as Ms. Yoko Komiyama of the opposition party and Mr. Shigeyuki Tomita of the New Komeito Party, kept saying this over and over again, but were rebuffed by the Supreme Court. I would appreciate it if you could speak your mind.
So, in order to make visitation more active in court practice, wouldn’t it have been better to clarify the purpose of the legislation by stipulating the rights from the front? How about it?
047 May Eda
I believe that the interests of the child are a noble goal that goes beyond rights and duties.
There is a lot of debate among legal scholars as to whether visitation is the right of the child or the right of the parents, and what the legal nature of visitation is, but I would like you to understand that my wish as a legislator is to go beyond such debate and to make sure that visitation is done in the best interest of the child.
048 Hiroshi Hase
I think that the answer was very much in favor of the status quo and in pursuit of the status quo.
In fact, I looked at the actual situation in various countries for reference. In the neighboring country of South Korea, there is a firm statement of the right. The same is true for the Convention on the Rights of the Child, which our country has ratified. In other words, it must be said that Japan’s public awareness has not caught up with the global standard.
This time, it would have been better if the amendment had been made with the aim of enlightening the public on the concept that it is necessary for the benefit of the child, by stipulating the rights head-on. In addition, if we are concerned about excessive assertion of rights, we can avoid it to a large extent by making it a child’s right like the Convention on the Rights of the Child. What do you think about this?
049 May Eda
I have a hard time answering this question because it is quite a painful point to be pursued, but I have heard that there have been a lot of discussions about who has the right or not to have visitation between a non-custodial parent and a child, and it has been difficult to reach a consensus.
So, first of all, let’s write this kind of visitation into the law, and let’s also write that it is for the benefit of the child. If I were to answer that this is the right of the child, I would be overstepping the bounds of what you have discussed so far, so I will not answer that, but I think you will understand what I am trying to say.
I am well aware of the Convention on the Rights of the Child and various other international standards that you have just mentioned.
050 Hiroshi Hase
At the last Legal Affairs Committee meeting, when we were talking about the Hague Convention, I think I said something like this. Divorce is a marital issue, and even if a couple divorces, the father is still the father and the mother is still the mother for the child. I think it would have been better to assert the right to visitation from this perspective, and to limit visitation for the sake of the child, based on the idea of prioritizing the interests of the child.
Let me move on to the next question.
According to the proposed amendment, a reasonable judgment as to what is in the best interest of the child will be made in the first instance through consultation between the parents. In other words, I believe that there is an underlying value judgment that the parents are the most qualified persons to judge the interests of the child.
051 May Eda
Parents are parents to their children, and children are parents to their children, and this relationship is the most basic family relationship in society. Therefore, what is in the best interest of the child is first and foremost the parents.
As I mentioned earlier, family court investigators have various counseling skills, so they can intervene and make adjustments. When the family court comes in, it is the father and the mother who have to consider the best interest of the child first and foremost. I hope that fathers and mothers around the world will understand this point well.
052 Hiroshi Hase
However, if the parent with custody is strongly opposed to visitation because they respect the primary judgment of the parents, even if the family court later intervenes, it is easy to conclude that visitation is basically not allowed.
In fact, there is a case that clearly states so. I would like to introduce this case. It is a precedent issued by the Yokohama Family Court on April 30, 1996. It reads as follows If the parent with parental authority is strongly opposed to the non-custodial parent having an interview, it is reasonable to avoid the interview unless there are special circumstances.
I would like to ask the Supreme Court about this, but I don’t think this kind of case is the leading case in current practice. Aside from the outcome of the trial, shouldn’t this kind of judgment standard be rejected? How about it?
053 Yoshihiro Toyosawa
Whether visitation is allowed or not, and the manner in which it is allowed, are matters that are judged individually and concretely by family affairs judges and courts according to each case.
With regard to the examples of judgments that you have pointed out, the administrative authorities would like to refrain from expressing their opinions on individual judgments, but from the viewpoint of general practice at the present time and in recent years, it is generally believed that it is desirable to maintain continuous interaction with both parents for the sake of the healthy growth and development of the child. Therefore, unless there are circumstances that prohibit or restrict visitation, such as abuse of the child, visitation is allowed, and the manner and frequency of visitation are determined by the circumstances of both parents, the relationship between the parents and the child, and various circumstances concerning the child. The manner and frequency of visitation is determined on a case-by-case basis, taking into consideration the circumstances of both parents, the relationship between the parents and the child, and various other circumstances concerning the child.
054 Hiroshi Hase
You are Mr. Toyosawa of the Supreme Court, aren’t you, Director of the Family Affairs Bureau?
If that is the case, is it correct to think that this case of the Yokohama Family Court on April 30, 1996, which I have just introduced, is an extremely unique case, an individual case, and not very favorable at the present time? I would like to ask you, Mr. Toyosawa.
055 Yoshihiro Toyosawa
As you pointed out, there were judgments with this kind of reason as of 1996.
However, when I look at the recent judicial precedents, such as the literature compiled by the Hanrei Times about two years ago, which surveyed and analyzed the judicial precedents regarding visitation exchange, I understand that the majority of the judicial precedents are in the same trend as I mentioned earlier.
056 Hiroshi Hase
So, let me say it one more time. Even after divorce, the couple has no choice but to have regular visitation with the non-custodial parent, which is appropriate for the child. However, there are times when it is better not to have visitation depending on various circumstances. This is truly a case of individual and special circumstances. I am trying to understand that this is a recent precedent, but is that correct? I would like to ask you one more time, Mr. Toyosawa.
057 Yoshihiro Toyosawa
As I said earlier, the trend of recent judicial decisions and the situation in practice are in the same direction as the one you have just pointed out.
058 Hase Hiroshi
If this is the case, I think it would have been better to clearly state the right of visitation. What do you think? I would like to ask you again.
059 May Eda
As I mentioned earlier, we have come to this point by consolidating the discussions of various people, so I would like you to understand that I am not using the word “rights” as my feelings, but I would like you to understand that we are all obligated to make efforts to ensure that visitation exchange is possible as much as possible for the benefit of the child.
It is not for me to say anything about how the family courts handle their practice, but I would be very happy if you could understand that the decision of the Yokohama Family Court is just one example, because not all family court decisions are published as leading cases, saying that this is the direction to take.
060 Hiroshi Hase
I would like to ask you more about the practice of the Family Court later.
So I would like to ask the Supreme Court to conduct a survey. I would like to ask the Supreme Court to publish in writing all the family court cases concerning visitation exchange over the past ten years, which have provided criteria for judgments on the merits of visitation exchange.
Of course, this is not an attempt by the legislature to violate the independence of the judiciary or courts, or to put pressure on them. I would like you to conduct a survey and provide us with the data, with the understanding that this is an activity to be utilized for future legislation.
061 Yoshihiro Toyosawa
As you know, domestic affairs cases, not limited to this visitation exchange, are related to domestic issues and disputes, and they are deeply concerned with the privacy of the parties concerned. As a result, careful consideration from the point of view mentioned earlier will be necessary in investigating and publicizing the judgments that will be made in the proceedings.
As I mentioned earlier, there is a relatively new research study on visitation exchange that was published in a law journal in 2009, which was written by a judge and a family court researcher. In this article, the author analyzed the factors to be considered in determining whether or not visitation is allowed and how often, etc., in 59 cases of trials concerning visitation exchange from 1964 to 2006.
In addition, the Ministry of Justice commissioned a research study on the system for realizing visitation exchange between parents and children. In addition to the analysis of visitation exchange cases at the family courts, hearings from private support groups for visitation exchange and questionnaires from the parties concerned were conducted, and the report is currently being compiled.
Based on the results of the research conducted by the Ministry of Justice, we will continue to consider the possibility of conducting research and study with consideration for the closed nature of family affairs cases.
062 Hiroshi Hase
Thank you very much for your introduction, and I will refer to it for further study. Thank you very much.
In the first place, do parents who are under high stress regarding post-divorce custody have the ability to make calm judgments about the interests of their children? Furthermore, academically speaking, parent-child interaction after divorce is generally beneficial for the growth of the child, but how many parents in our country do not know this and cannot admit it?
Therefore, in cases where the family court has to intervene, it is necessary for the family court to objectively determine what is in the best interest of the child, without being influenced by the opinions of the parents who are under high stress regarding the custody of the child. I would like you to clearly state that this is one of the purposes of this proposed amendment.
063 May Eda
As you pointed out, in many cases where the parents are unable to reach an agreement and the family court has to intervene, there may be a high level of stress between the parents regarding the custody of the child.
In such cases, instead of making a judgment that visitation and exchange is outrageous when the parents are in such a frustrating situation with the child, we should make efforts to realize visitation and exchange for the welfare and benefit of the child, because the relationship between parents and child is important even in such circumstances. There are always exceptions to this rule, but this bill shows that the family court should make efforts to realize visitation exchange for the welfare and benefit of the child. I hope that the family courts will understand this and make an effort to do so.
064 Hiroshi Hase
In general terms, it is in the best interest of the child for the child to have visitation with the separated parent, so even if the parent with custody strongly opposes visitation, the court should allow visitation unless there are special circumstances, and it is presumed to be in the best interest of the child. Can we also clearly state that this is the purpose of the proposed amendment? What do you think?
065 Mayuki Eda
In such cases, as the member of the committee pointed out, there may be some difficulties, but still, I believe that the family court should try to make visitation between parents and children as much as possible, which is the intention of this law.
I hope that more efforts will be made in such a direction at the family court mediation and trial.
066 Hiroshi Hase
In my opinion, the root of this problem lies in the fact that even if the family court orders visitation, the family court does not have the power to enforce it, so even if they want to order it, they are restrained by the authority of the family court.
067 May Eda
I have been a judge before, but it was a very long time ago, and I have also worked in the family court, but I only worked on juvenile cases right next door, so I don’t know if I can say that such a tendency generally works in the family court.
It is true that there are various measures such as recommendations for performance and indirect compulsion, but it is not good to drag the parents to meet each other just because you want them to meet each other. It is not easy to force a child to see his or her parents, so the family courts should be persistent and not go too far, but they should try to reach into the folds of the hearts and minds of the people concerned and unravel their hearts, so that a good parent-child relationship can be established.
068 Hiroshi Hase
I’m going to suggest something a little intense now.
If the family court does not follow the recommendation for performance, indirect compulsion under Article 172 of the Civil Execution Law can be used, but in reality, it is not functioning very well. In such cases, the court should recognize the case as an abuse case under the Child Abuse Prevention Law, or apply the Habeas Corpus Law and issue a habeas corpus order to secure the punishment.
On a related note, isn’t the wrongful removal of a child also considered abuse? It would be better to ask the Ministry of Health, Labor and Welfare about this, but if you ask the Ministry of Justice, that would be too much.
I would like to ask you how I think this should be done.
069 May Eda
I think it is very important for you to think hard about what to do in the case that the recommendation is not followed.
It is true that, unfortunately, there are cases where the father and mother are at odds with each other over visitation and the visitation is not properly carried out. However, there are various reasons why the custodial parent refuses to allow visitation, such as anxiety that the child will be taken away during the visitation, or strong stress and conflicts during the divorce process, such as not wanting to see the child anymore. In addition, it is difficult for people to understand that appropriate visitation between parents and children is important for the sound upbringing of the child, even if it is with a separated ex-husband or ex-wife.
However, when there are such circumstances, I wonder if using coercion is really the way to create good human relations, because coercion also causes stress. There are many ways to persuade them, such as understanding that the father is still the father and the mother is still the mother even after the separation, or that there is no need to worry about them being taken away, because they will be able to see each other in this way. I think it is important to make such efforts as much as possible.
In addition, habeas corpus is a system in which a person who has been detained is separated from his or her custody and brought to the court, and it is very difficult to determine whether the custodial parent’s custody of the child constitutes detention under habeas corpus.
In any case, I think it is important to be convinced.
070 Junko Ishii
The Child Abuse Prevention Law is a law that was created by teachers in the past, so the question is how to apply it to the Child Abuse Prevention Law. As a premise, there is a starting point that the child does not follow the recommendation of the family court, and I think there is an assumption that it is a very serious and severe case.
Without looking at each specific case, it is difficult to make a general judgment as to whether or not it really fits into the definition of child abuse. However, as you know, in Article 2, Item 4 of the definition of child abuse, “extremely abusive language or extremely rejecting behavior toward a child,” and “other language or behavior that causes significant psychological trauma to a child” fall under the category of child abuse.
071 Hiroshi Hase
It is very difficult to define the definition of abuse. When we drafted the amendment to the Law on the Prevention of Cruelty to Children, for example, we included in the definition the concept that although it is not direct cruelty to the child, showing a violent fight between parents is considered cruelty. Therefore, as Mr. Ishii said, in the discussion among the lawmakers, what I am talking about now is this: if one parent takes the child away without permission and does not allow the child to see him/her, how does that affect the interests of the child? I would like to say that I believe that if the debate on whether or not this is a case of abuse can be resolved, it may be possible to write the law in a special way or revise it.
Incidentally, when the Child Abuse Prevention Law was amended in 2008, there were two supplementary provisions, right? One was the issue of parental rights, which has now been realized. The other is to enhance the issue of social care. Therefore, the Child Abuse Prevention Law should also be revised every three years based on the historical background.
As long as there are cases of abuse that are beyond our imagination and understanding, we should respond to them.
Next, I think that we should establish a system to publicly support the efforts of private organizations that support visitation exchange. I think that the government should be sympathetic to the feelings of parents who are reluctant to have visitation, relieve their anxiety, and ensure their safety during visitation. In the future, I think that public visitation centers should be established in all areas where family courts are located nationwide, and dedicated specialists should be assigned to them.
072 Junko Ishii
I would like to answer your question.
From the standpoint of the interests of the child, it is extremely important to have appropriate visitation exchanges between parents and children after divorce.
The Ministry of Health, Labour and Welfare established the Child Support Consultation Support Center in 2007, which provides consultation not only on child support but also on visitation exchange. Although the number of consultations is still small, the number is increasing every year. In addition, at the Employment and Self-Support Centers for Single-Mother Families, which have been established in each prefecture, specialized counselors are assigned to provide consultation and support on child support and visitation exchanges, and the number of consultations at these centers is also increasing.
In the future, there are still some centers for supporting the independence of single-mother households that do not have specialized counselors, so we will promote the placement of such counselors there. We would like to improve the consultation and support system for visitation exchange through training and cooperation with related organizations.
073 Hiroshi Hase
I understand. I would like you to proceed further.
It is also important to reduce the burden on the family courts. For example, we have recently hired active lawyers as part-time judges for family affairs mediation, etc. I think that we should promote this more in terms of utilizing lawyers who are not available for work.
074 May Eda
In recent years, I have heard many people say that even if they become lawyers, there are no job opportunities.
As for the family affairs mediator, as you pointed out, even if you ask someone who is a lawyer but has no job to become a mediator immediately, it will not work. The reason is that they are part-time court officials appointed by the Supreme Court on the recommendation of the Japan Federation of Bar Associations from among those who have been lawyers for five years or more, so they have to be lawyers for five years. By utilizing this system, the source of salary of judges will be diversified, the number of judges will be diversified, and the dispute resolution function of mediation proceedings will be further enhanced and strengthened. By utilizing this system, we will be able to diversify the sources of judges, diversify the pool of judges, and further enhance the dispute resolution function of the mediation process.
Unfortunately, in 2009, there were 11 judges including reappointments, and in 2010, there were 30 judges including reappointments. I would like to see the number increase even more.
075 Hiroshi Hase
Minister, you have given a good answer. I would also like to see the number of lawyers increase even more, and aren’t there many lawyers who have been lawyers for five years and still don’t have a job?
076 May Eda
I think that there are many lawyers who have been lawyers for five years and still have no job. There are a lot of jobs in the world, and there are a lot of people who need legal advice, even if they go to the disaster areas now. Why don’t you go to the shelters? The lawyers may say that they are going there.
In any case, with that in mind, this is also true for civil servants, central or local, or even companies. There are various slums, or poverty zones, and rural areas as well. I hope that lawyers will not say that there is no work after five years, but in reality, there may be lawyers who say that there is still no work after five years.
077 Hiroshi Hase
I would like to pursue this issue slowly at another time.
In relation to this, I would like to propose the establishment of a child representative system.
I would like to propose the establishment of a system to represent the interests of children when they are involved in disputes between their parents, such as in divorce proceedings.
For example, there are children under 15 years old who tell the investigator that they don’t want to see their separated parents because they don’t want to be disliked by their cohabiting parents, even though they really want to see them. In such cases, I think it is necessary to have a person who can sit with the child, gain his or her trust, find out the child’s true intentions, and think about what is in the child’s best interest and express it publicly.
078 May Eda
I think you have made an important point.
When parents are in the middle of a conflict, they don’t have time to think about their children’s feelings, and I think it is necessary to take into account the feelings of the children and the environment surrounding them.
However, as you pointed out, there is no system in place for the child to assert his or her own interests in the proceedings or for a representative to represent the child.
However, it is important to note that we have submitted the Family Affairs Procedure Bill to the Diet. It is now being discussed in the House of Councillors Committee, and I am sure it will come to this committee soon.
In this bill, in cases where a minor child is affected by the outcome of the proceedings, the family court shall endeavor to ascertain the child’s intentions by hearing the child’s statement or by an investigation by a family court investigator or by other means, and shall take the child’s intentions into consideration according to the child’s age and level of development.
Furthermore, for children who can accurately express their feelings and intentions, it will be possible for them to participate in the procedures for the designation of the person with parental authority or the trial for visitation exchange, or the court can appoint a lawyer as a procedural agent after having the child participate in the designation of the person with parental authority or visitation exchange.
079 Hiroshi Hase
I hope that the law will be enacted.
In addition, there are academic follow-up studies on the long-term effects of divorce on children, but there are too few in Japan. Shouldn’t there be a strong public support for such a study? What do you think?
080 May Eda
Recently in Japan, there has been a growing interest in the impact of visitation on children, and I believe that it is being actively discussed. The Ministry of Justice would like to keep a close watch on these discussions, but if we just watch and wait, we will just be standing idly by.
Instead, we commissioned a research study on the system for realizing visitation exchanges between parents and children, and the report is now being compiled. In this research, in addition to analyzing visitation exchange cases at the Family Court, we have also conducted hearings from private visitation exchange support groups and questionnaires from the parties concerned.
081 Hiroshi Hase
Since the Supreme Court is here, let me ask you a question.
Since the Supreme Court is here, let me ask you a question.
082 Yoshihiro Toyosawa
If a mediation is held or a trial is held at the family court, and after that, if there is a request for a recommendation for performance, we have a statistical understanding of the number of such requests, but other than that, I don’t think the court has any understanding of how things are progressing between the parties after the final result of the mediation or trial at the family court.
083 Hase Hiroshi
Yes, that’s right. There is no such thing, Minister. I think this is a very important point. I do not think it is the job of the Supreme Court to conduct follow-up investigations after the court has decided on the custody of the child or the custody of the child, but I do think that it is necessary to conduct research to find out the trends and to verify whether the decision was in the best interest of the child. What do you think about this?
084 May Eda
This is quite a difficult thing to do. Trials are a passive state function, and when a case is filed, we answer it, but after we answer, it is very difficult to have the court track whether the answer was good or not. In the case of a criminal case, if the defendant is convicted, the court can do a certain amount of work, such as monitoring the defendant in prison or in a probation office, but if not, it is very difficult.
However, what I think is that the courts, as well as the district courts, are certainly like that, but the family courts are a socialized activity in terms of both procedure and character. The family court is a socialized activity, both in its procedures and in its nature. It is a place where we can go into the society and solve various disputes, and therefore we have investigators and we do various things. I think it is true that there is a treasure trove of seeds of solutions that can be found only by going to the scene.
Of course, it is very difficult to reveal all of these cases to society because of the various privacy concerns of individuals, but I believe that we must think of some way to explore the treasures in the accumulation of these cases in various ways and use them as materials to create a wonderful world.